Effetti della liquidazione giudiziale sul rimborso dei finanziamenti dei soci

The recently approved Italian Insolvency Code, which will come into force on 1 September 2021, sets forth that the repayment of quotaholder loans is ineffective vis-à-vis the bankruptcy administrator whereby (i) the loan was granted in circumstances where the company’s debt was excessive compared to the company’s net assets or in a financial situation in which a contribution would have been reasonable and (ii) the repayment occurred within one year before the bankruptcy petition or between the date of bankruptcy petition and the commencement of bankruptcy proceedings. This rule regarding the repayment will be removed from Article 2467 of the Civil Code and inserted into Article 164 of the new Insolvency Code with a new wording, leaving in Article 2467 of the Civil Code the provision stating that in the context of a limited liability company the repayment of the aforementioned quotaholder loans is subordinated to the repayment of the other creditors’ claims. This paper aims to clarify the relationship between the rule of the Insolvency Code related to the repayment and the subordination rule set forth by the Civil Code and to identify the bankruptcy law rules that apply to the repayment and to the related loan.